State v. Scott , 298 P.3d 660 ( 2013 )

2013 UT App 47_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
MARK STEVEN SCOTT,
Defendant and Appellant.
Per Curiam Decision
No. 20130035‐CA
Filed February 22, 2013
First District, Logan Department
The Honorable Kevin K. Allen
No. 071100163
Mark Steven Scott, Appellant Pro Se
John E. Swallow and Marian Decker, Attorneys for Appellee
Before JUDGES DAVIS, VOROS, and CHRISTIANSEN.
PER CURIAM:
¶1 Defendant Mark Steven Scott appeals the denial of a motion
to reinstate the time to file a direct appeal under Manning v. State,
2005 UT 61, 122 P.3d 628. This case is before the court on a sua
sponte motion for summary disposition. We affirm.
¶2 In Manning, the Utah Supreme Court created a procedure to
restore the right of direct appeal to defendants who were unconsti‐
tutionally denied the right to appeal through no fault of their own.
However, Scott pursued a direct appeal to a decision on the merits
State v. Scott
that resulted in an affirmance of his convictions. See State v. Scott,
2009 UT App 367U (mem.). We concluded that Scott had “neither
adequately briefed his arguments nor properly marshaled the
evidence to support his position.” Id. para. 7. We also concluded
that even if Scott had made sufficient arguments, he had “not
shown that the witnesses’ statements were inherently improbable,
or that the evidence presented was insufficient to support the jury’s
verdict.” Id. Under these circumstances, Scott was not deprived of
his constitutional right to direct appeal. Scott subsequently filed a
Manning motion claiming that he was denied his right to appeal
because his appellate counsel was ineffective both in briefing his
direct appeal and in failing to file a petition for writ of certiorari by
the Utah Supreme Court.
¶3 State v. Rees, 2005 UT 69, 125 P.3d 874, is dispositive of this
appeal. In Rees, the Utah Supreme Court reversed our decision
remanding a case to the district court to ascertain whether a
defendant was denied a right of appeal due to appellate counsel’s
ineffectiveness and directing the district court to resentence the
defendant if the district court determined that appellate counsel
was ineffective. See id. ¶¶ 6, 9. The supreme court reversed, stating
that “[d]efendants who gain entry to appellate courts and have
their appeals concluded either by a ruling on the merits or involun‐
tary dismissal have exhausted their remedy of direct appeal and
are thereby drawn into the ambit of the [Post‐Conviction Remedies
Act (PCRA)].” Id. ¶ 18. Accordingly, the supreme court held that
the claim that appellate counsel was ineffective did “not implicate
an unconstitutional denial of [the] right to appeal and that despite
the unfavorable outcome of his appeal, [the defendant] has
exhausted his right to appeal and is therefore required to prosecute
[the] claim of ineffectiveness of counsel under the PCRA and rule
65C [of the Utah Rules of Civil Procedure].” Id. ¶ 20.
¶4 We conclude that Scott’s claim that he is entitled to reinstate‐
ment of the time to petition the Utah Supreme Court for certiorari
also does not have merit. Because this claim also asserts that
20130035‐CA 2 2013 UT App 47State v. Scott
appellate counsel was ineffective in the completed direct appeal, it
stands on no different footing than Scott’s other claims and can
only be asserted in a petition filed under the PCRA and rule 65C of
the Utah Rules of Civil Procedure. See id.
¶5 Affirmed.
20130035‐CA 3 2013 UT App 47